HKSAR v. NG KAM WING

HCMA561/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 561 OF 2009

(ON APPEAL FROM TWCC 1182 OF 2009)

---------------------

----------------------

--------------------------

JUDGMENT

--------------------------

1. The appellant appealed against his conviction on 26 June 2009 by Mr Glass in the Tsuen Wan Magistracy of a single count of criminal intimidation, contrary to section 24(a)(i) of the Crimes Ordinance, Cap.200, in consequence of which he was sentenced to 4 months’ imprisonment.  There is no appeal against that sentence.

THE CHARGE

2. The charge alleged that on 18 April 2009 at Luen Yan Street cooked food stall, Luen Yan Street in Tsuen Wan the appellant threatened Ms Leung Sio Mei, Maria Rosa (“Ms Maria Rosa Leung”) with injury to her property with intent to alarm her.

THE TRIAL

The prosecution case

3. At trial the prosecution called Ms Maria Rosa Leung and her employee, Ms Lin Wei (“Ms Lin”) as witnesses.  Both witnesses confirmed that until their resignation on 9 April 2009 they had each been employed by the appellant in a lunchbox business.  After her resignation Ms Maria Rosa Leong set up her own business of providing lunchboxes for construction workers.  They, that is Ms Maria Rosa Leong and Ms Lin, had known each other to 10 years and were good friends.

4. She said that at 9:30 a.m. on 18 April 2009, whilst she and Ms Lin were working at her Pai Dong in Luen Yan Street cooked food stall preparing food for delivery to the construction sites, the appellant appeared in what she described as the “doorway” of those premises.  She said that he came into the premises alone, although there were probably four or five males at the doorway.  She was scared by their presence and was confused.  At the appellant’s request she went out of the premises leaving Ms Lin inside. She estimated the place where she had a conversation with the appellant to be 19 feet away from her own premises.  Immediately, the appellant asked her :

“Are you taking away my lunchboxes?”

She understood that the issue being raised was whether or not she was taking orders for lunchboxes from construction site workers.  She judged from his face that he was angry and he spoke loudly asking her if she dared to take away his custom.  She answered in the negative the question as to whether or not she had somebody at her “back”.  He pointed his finger at her and said :

“Don’t take away my lunchboxes again.  If you take away my lunchboxes again, I will burn your vehicle down.”

During this conversation she noticed the four or five men that she had described earlier were nearby.

5. Ms Maria Rosa Leung said that she was so scared that she dared not speak to the appellant.  In response to his request she returned towards her own premises to ask Ms Lin to come to the appellant.  However, she noticed Ms Lin nearby and asked to go there.  She left and returned to her work, so that she did not hear whatever was said between them.  She saw the appellant later after he had talked to Ms Lin.  At that time he was in a nearby corridor where he prepared his lunchboxes.  The appellant was alone on this occasion.  She said that his face went black and she judged him to be angry.  The appellant asked her where her son was.

6. Of the whole experience Ms Maria Rosa Leung said that it had left her scared : she was scared of the threat to burn her vehicle, which she judged to be “intimidating” her.  She made a report to the police that afternoon.

7. In cross-examination, Ms Maria Rosa Leung denied the suggestion that she had not seen and talked to the appellant on 18 April 2009.  Similarly, she denied a suggestion that she had made up the allegations against the appellant in order to get rid of his business competition.  Also, she was cross-examined about various suggested inconsistencies between her testimony and accounts that she had given in witness statements to the police out-of-court.

8. Ms Lin testified that on the morning of 18 April 2009 she and Ms Maria Rosa Leung had been working at the latter’s cooked food stall.  Earlier that morning she had encountered the appellant nearby to her place of work and spoken to him about wages he owed her from her recently terminated employment.  He told her that she would not be paid her salary that day.  At about 9:30 a.m. she saw the appellant and another person come to where she and Ms Maria Rosa Leung were working.  The appellant asked the latter to come out of those premises.  She did so.  For her part, Ms Lin carried on working for about 10 to 15 minutes before Ms Maria Rosa Leung returned and asked her to go out.  She did so and was accompanied by Ms Maria Rosa Leung to a table nearby where the appellant was seated.  Then, Ms Maria Rosa Leung stood aside.  At the appellant’s request she sat down.  She noticed that there were several males seated nearby.  She had a conversation with the appellant.  She did not notice the whereabouts of Ms Maria Rosa Leung during that conversation.  She was not led to give evidence as to the details of the conversation but she did say that she became scared.  When the conversation ended it was Ms Maria Rosa Leung who told her to leave.  She did so.

9. In cross-examination, she denied suggestions that the appellant was not in the vicinity of her cooked food stall at 9:30 a.m. that day and that she had not talked to him that day.

The defence case

10. Although the appellant did not avail himself of his right to give evidence he did call a witness, Mr Cheung Chi Kwong (“Mr Cheung”).  Although the parties have not found it necessary to place a transcript of his evidence before me, there is no dispute that he testified that he had been in the immediate vicinity of Ms Maria Rosa Leung’s cooked food stall from about 9:30 a.m. on 18 April 2009.  He was there because he had a rendezvous with the appellant at 10 a.m. and had arrived early.  He took breakfast at a cooked food stall and met the appellant as he arrived in his car at 10:03 a.m.  He had not seen him in that area prior to his arrival by car.

THE MAGISTRATE’S STATEMENT OF FINDINGS

(i)  Inconsistencies

11. In his Statement of Findings the magistrate stated that he considered inconsistencies in the evidence of the prosecution witnesses.  He concluded :

“The inconsistencies I found within and between the witnesses’ evidence confirmed to me that the prosecution witnesses were giving evidence from their own perspective of the incident rather than repeating a rehearsed story.”

12. The magistrate noted that there was an inconsistency between the evidence of Ms Maria Rosa Leung and her out-of-court statement to the police, as to whether there were three, four or five males accompanying the appellant as he arrived at the doorway to her premises at the outset of the material events on the morning of 18 April 2009.  In her second statement to the police she had said that there were three men accompanying the appellant, whereas in her evidence she was resolute that there were four or five men.  In determining that the inconsistency was not material the Magistrate found that Ms Maria Rosa Leung was paying attention to the appellant and accepted that she was scared.  He found that she did not accurately recall how many men there were at the outset but was aware that there were a few men with the appellant as the incident unfolded. 

13. The magistrate stated he took account of the fact that Ms Lin has testified of only one man accompanying the appellant as the latter entered the premises.  However he noted that later in her evidence when she testified of the circumstances of her own conversation with the appellant she spoke of several men being seated at a table nearby to where the appellant was seated.

14. The second inconsistency in the evidence of Ms Maria Rosa Leung identified by the Magistrate was as to whether or not the appellant had begun questioning her about taking his business immediately on entering the premises or whether he had asked her to go elsewhere nearby at which place a conversation took place.  In her evidence, she had said that on arrival at her premises the appellant had simply asked her to come outside, with which request she complied.  In her first statement to the police she had said that the appellant together with four to five men had appeared in front of her in her premises and said : “Are you so daring to take away my lunchboxes for sale”.  The magistrate determined that he was sure that the conversation had taken place and did not find the location of the commencement of the conversation material.

(ii) motive

15. The magistrate stated that he warned himself about the possible motive of Ms Maria Rosa Leung and Ms Lin to fabricate their evidence against the appellant as a competitor in their new business.

16. In the result, the magistrate determined that the two prosecution witnesses were honest and reliable witnesses whose testimony he accepted.  He specifically rejected the suggestion that they had fabricated the case against the appellant.

The defence case

17. The magistrate acknowledged that in not electing to give evidence the appellant had merely availed himself of a right and stated that no assumption of guilt was to be made.  However, he went on to note that :

“his silence left me without any explanation from him to undermine, contradict or explain the prosecution evidence against him.”

18. He rejected the evidence of the witness called for the defence, Mr Cheung, in particular his account of how it was that he came to be there to meet the appellant, and also having regard to the brief conversation that he testified that he had with the appellant in respect of prospective employment with the appellant.

Conclusion

19. In the result, the magistrate accepted that the words uttered by the appellant to Ms Maria Rosa Leung, in particular that he would burn her van was, and was intended to be, a threat by the appellant to her property, which he intended to cause her alarm.  Accordingly, he found the appellant guilty.

GROUNDS OF APPEAL AGAINST CONVICTION

20. By Ground 2 of his grounds of appeal against conviction Mr Charles Chan, who appeared on behalf of the appellant and at the trial, contended that the magistrate erred in accepting Ms Maria Rosa Leung as an honest and reliable witness, whose testimony he contended was “completely contradicted by Ms Lin’s testimony.  In his oral submissions to this court Mr Chan laid emphasis on the magistrate’s rejection of the assertion made to him at trial by counsel that Ms Maria Rosa Leung had been present during the whole of the conversation between Ms Lin and the appellant and that the former’s credibility was impugned by her evidence to the contrary.  He contended that was a flawed finding.  In so asserting he pointed to the fact that Ms Lin had said that Ms Maria Rosa Leung had taken her to the table where the appellant was seated at the commencement of their conversation and that she was the person who told her to leave when the conversation terminated.  He contended that it was to be inferred from that evidence that she was present throughout.

21. It is to be observed that the magistrate noted, correctly, that it was Ms Lin’s testimony that during her conversation with the appellant she did not see where Ms Maria Rosa Leung was located.

22. By Ground 3 it was submitted that the magistrate had erred in law in stating that in the absence of testimony from the appellant, “his silence left me without any explanation from him to undermine, contradict or explain the prosecution evidence against him.”  It was contended that the magistrate was in error having regard to the fact that the defence did call evidence from Mr Cheung, in particular as to the appellant’s absence from the place at which the event had occurred.

23. By Ground 5 it was contended that the magistrate erred in law in stating that if he disbelieved either Ms Maria Rosa Leung or Ms Lin of “on any material issue I should exercise caution and being slow in accepting their evidence on any other material issues”.

24. Finally, by Ground 6 it was submitted that in stating that he was not “impressed” by the evidence of Mr Cheung the magistrate had erred in that the appropriate test was whether the evidence was true or “maybe true”.

THE SUBMISSIONS OF THE RESPONDENT

25. On behalf of the respondent Mr Ira Lui submitted that the case was relatively straightforward.  The evidence as to the threat came only from the testimony of Ms Maria Rosa Leung.  Accordingly, the magistrate had to be satisfied that there were no material inconsistencies and discrepancies in her evidence.  Mr Lui suggested that there were internal inconsistencies in her evidence as to how many male persons accompanied the appellant in his initial contact with Ms Maria Rosa Leung.

26. Further, the court was invited to note the external inconsistency between the account of Ms Maria Rosa Leung and that of Ms Lin, the latter having testified that when the appellant first approached Ms Maria Rosa Leung he had come into the premises in which the two of them worked accompanied by one person only.  Counsel suggested that there was a difference in the evidence of Ms Maria Rosa Leung and Ms Lin as to the whereabouts of the former at the time that the latter had a conversation with the appellant.

27. In the result, he submitted that the discrepancies could not be categorised as immaterial.  He submitted that this court might be left with a reasonable doubt as to whether Ms Maria Rosa Leung had given an accurate account of the incident.

Ground 3

28. In opposing the appellant’s submissions in respect of ground 3, namely the effect of the absence of evidence from the appellant, the respondent pointed out that the direction had been approved in the judgments of both Lord Hoffmann NPJ, with whom all the other judges agreed, and Bokhary PJ in the Court of Final Appeal in Li Defan v HKSAR (2002) 5 HKCFAR 320.  Also, it was incorporated in the Specimen Directions issued by the Judicial Studies Board for use in jury trials.  Mr Lui pointed out that the judge’s statement was made with particular reference to an explanation from the appellant, “his silence left me without any explanation from him” [emphasis added].  It did not assert that there was no explanation in the defence case.  Clearly, there was: by inference it was that of alibi, the appellant was elsewhere because he was not present at the scene.  Further, the magistrate considered that evidence and rejected it.

Ground 5

29. In opposing the appellant’s submissions in respect of ground 5, the respondent submitted that the magistrate was doing no more than reminding himself of his approach to the evidence of the prosecution witnesses, that he was to do so with greater caution in the event that he disbelieved either of them on any material issue.

Ground 6

30. Of ground 6, the respondent submitted that in stating that he was not “impressed” by the evidence of the defence witness, Mr Cheung, the magistrate was not misapplying the burden and standard of proof.

A CONSIDERATION OF THE SUBMISSIONS

Ground 3

31. There is no merit whatsoever in the submissions made in ground 3 that the judge erred in law in stating of the absence of testimony from the appellant that “his silence left me without any explanation from him to undermine, contradict or explain the prosecution evidence against him.”  As is perfectly apparent, and as Mr Lui pointed out, the magistrate directed that observation in respect of the defendant himself [emphasis added], not the defence case as a whole.  Indeed, immediately after those observations he went on to consider the evidence of Mr Cheung in the defence case.  Having rejected the evidence of Mr Cheung as to the absence of the appellant at the scene of events, inevitably there was nothing to “undermine, contradict or explain the prosecution case against him.”

Ground 5

32. Similarly, in my judgment there is no merit in the submissions advanced by ground 5.  The warning of the magistrate gave himself was in the context of an overall warning as to the approach to their evidence, in particular the existence of a motive in them arising from competition from the appellant’s business.

Ground 6

33. In saying of Mr Cheung that he was not “impressed” with his evidence, lead the defence case, the magistrate was doing no more than setting the scene for what immediately followed, namely his rejection of his evidence and, in particular, his finding that he was not telling the truth.  There is no merit whatsoever in ground 6.

Ground 2

34. In the judgment of Bokhary PJ in the Court of Final Appeal in Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70 proceedings of this nature were described as (page 78, paragraph 19) :

“…by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so.”

Of importance in this context, the judge went on to note :

“Where the facts are concerned, the appellate tribunal will recognize that it does not enjoy the advantage of having received the evidence at first hand [emphasis added] which the magistrate enjoyed.”

35. In my judgment, the obvious merit and sense of the latter statement is illustrated by a perusal of the transcript of the evidence of both Ms Maria Rosa Leung and Ms Lin.  Often their answers were non-responsive and difficult to follow.  Of some significance, is the fact that in re-examination counsel for the prosecution found it appropriate to lead evidence as to the education level of Ms Maria Rosa Leung.  His preface to the question, namely that she appeared to have difficulty in following questions was fully justified from a perusal of the transcript.  Her evidence was that she had not finished primary education.  It is to be remembered that she worked in a “pai dong” providing food for lunch boxes.  No doubt she was a simple person.

36. In reaching a determination of the credibility of both Ms Maria Rosa Leung and Ms Lin, and in determining the significance or otherwise of inconsistencies in and between their testimony, the magistrate had the clear advantage over this court of receiving their evidence at first hand.

37. No suggestion is made that this experienced magistrate was not aware of the imperfections in their testimony.  Indeed, the magistrate addressed his resolution of those issues in a thorough and detailed analysis, encompassing no less than three paragraphs of his Statement of Findings.  In the result, he determined :

“I found that I was satisfied beyond reasonable doubt that the defendant had spoken to PWI (Ms Maria Rosa Leung) at about 9:30 a.m. that morning in the general location and that he made the threat to her.”

38. Of the particular submission, advanced an oral testimony by Mr Chan, that the magistrate was in error to reject the assertion that Ms Maria Rosa Leung was present during the conversation between Ms Lin and the appellant, in my judgment the magistrate was clearly correct.  There was no such evidence to support such a finding.

CONCLUSION

39. In the result, I am sure that the magistrate was correct in determining to accept the evidence of the prosecution witnesses, to reject that of Mr Cheung and to find the appellant guilty.  Accordingly, I dismiss the appeal against conviction.